Musicians and musical artists come to the United States from all over the world. How they may enter and using which visa depends on a number of factors, and some may be surprised as to the many restrictions in place for musicians who would like to play and perform in the US. The issues relating to visas for musicians appeared in headlines throughout major media in 2017, when a number of musicians attempting to travel to the US to perform at the South by Southwest festival in Austin, Texas were not allowed entry. Many of these artists attempted to enter the US on B visas, or through the Visa Waiver Program. While it might be possible in certain situations for musicians to enter in the US under these options, a variety of other visa categories are available that may indeed be a better choice for those who wish to come to the US to play music, depending on a number of factors. Some of the possible visa categories for musicians are: O visas, P visas, the Q-1 visa, and B visa, all of which we will discuss in this post.
Who may sponsor a musician to come to the US?
Before diving into the particulars of the different visa categories, it is important to note that if musicians wish to work in the U.S., their visa must be sponsored by a US based entity. By “sponsor,” we mean acting as the petitioner and filing the visa application on behalf of the musician beneficiary. For the O, P, and Q visas discussed below, the musician must have a sponsor.
For the O and P visas, only a US employer, a US agent, or a foreign employer through a US agent may sponsor the musician. Typical sponsors for musicians include US managers, agents, record labels, event producers and even venues where the musicians will perform. It is not possible for a musician to sponsor themselves for these visa categories, and the musician may only work with the sponsoring company or agency (although, if sponsored by an agency, there may be some range in the variety of events and clients for whom the musician may perform through the O visa).
For the Q visa, by comparison, only employers who administer cultural exchange programs (or the designated agent of such an employer) may sponsor a Q-1 musician.
The O Visas
The O-1 Visa
The O-1 visa is for individuals with extraordinary ability in several specified industries, including the arts. In order to qualify for the O-1B visa (for those with extraordinary ability in the arts), the musician (in this case) must demonstrate extraordinary ability by sustained national or international acclaim, and must be coming to the US to work in that area for a temporary period. O-1B applicants must show that they have a high level of achievement in the field of the arts, evidenced by a skill and recognition that is above an ordinary person in the field.
As discussed above, each O-1 requires a US-based sponsor or petitioner (an agency, venue, recording company, or manager) who must have an agreement with the musician. This agreement must generally summarize terms and show acceptance of the agreement. Additionally, the petitioner should include an explanation of potential events/activities that the musician will be participating in, along with dates, in the form of an itinerary. Petitioners must submit a written advisory opinion from a relevant union (such as the American Federation of Musicians or the American Guild of Musical Artists), or peer group.
In order to qualify for the O-1B visa, musicians must have received or been nominated for a significant national or international award or prize in the particular field, such as an Academy Award, Emmy, or Grammy. If they have not, then they must provide evidence of at least three of six categories, including evidence that they have performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation; they have achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about them; they have performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation; they have a record of major commercial or critically acclaimed successes; they have received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged; and/or they command a high salary compared to others in the field.
Unlike other visa categories, there is no limit to the overall amount of time one can be in the US in O-1 status, although the initial time for an O-1 is limited to three years, and extensions are limited to one year.
The O-2 Visa
Another option for musicians may be the O-2 visa, which is for essential team or group members accompanying the O-1 visa holder to work with the artist. This might include back-up or accompanying musicians to the O-1 headliner or a sound engineer or even makeup artist. The O-2 visa application must include evidence that shows the essential nature, critical skills, and experience of the O-2 with the O-1 artist, and that the O-2 applicant has substantial experience performing the critical skills and providing the essential support for the O-1 visa-holder. Work in the US for the O-2 visa-holder is limited to the work with the O-1, and their time in the US is limited to the period of time of the O-1 visa-holder’s status.
The P-1B Visa
The P-1B visa applies for those musicians who want to come to the US to perform as a member of an entertainment group that has been recognized internationally as outstanding for a sustained and substantial period of time. To show this, the group should be able to show several of the same categories as the O-1. Here, though, the reputation of the group, not the individuals of the group, is essential to show that the group has a high level of achievement such that the skill and recognition of the group is substantially higher than that of an ordinary group. There are certain situations where a nationally known (rather than internationally-recognized) group may be eligible for the P-1B visa if special circumstances exist.
At least seventy-five percent of the members must have a substantial and sustained relationship with the group for a least one year. The length of time in the US for the P-1B visa is limited to the amount of time needed to complete the event, competition, or performance, but may not exceed one year. It may be extended in increments of up to one year.
The P-2 Visa
The P-2 visa is for those musicians who are coming to the US to perform under a reciprocal exchange program between a US organization and an organization in another country. The program must be recognized by the government, the musician seeking to enter the US must possess skills that are comparable to the US musicians who are also taking part in the exchange program, and the terms and conditions of the programs’ employment must be similar in both the US and abroad. A labor organization must have been involved in negotiating the program or have concurred in the program’s establishment. Initially, time in P-2 status may be granted for the time needed to complete the performance, up to one year. Extensions of stay in P-2 status may be granted in increments of one year in order to complete the performance.
The P-3 Visa
The P-3 visa is for those who want to come to the US for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. The musician must be coming to participate in a cultural event that will further the understanding of the particular art form. The culturally unique program can be commercial or noncommercial.
Like the P-1B and P-2 visas, the P-3 visa should be valid only for the amount of time needed to complete the event, activity, or performance (not to exceed one year), and can be extended in increments of one year in order to complete the activity.
P Visas for Essential Support Personnel
Like the O-2 visa, an essential support personnel visa exists for those who are an integral part of the performance for the P musicians. These individuals must perform support services that cannot be readily performed by a US worker.
The Q-1 Visa
The Q-1 visa is similar to the P-3 visa in that the musician is seeking to come for the purpose of sharing history, culture, and traditions of their home country with the US. In the case of the Q-1 visa holder, the musician does this by participating in an international cultural exchange program. The Q-1 cultural exchange program is also an employment-oriented program that seeks to provide practical training and employment to the Q-1 visa-holder, though an integral part of the Q-1 visa holder’s duties must have a cultural element. Additionally, Q-1 visa holders must be at least eighteen years old and be able to communicate effectively about the cultural attributes of their home country.
In order to enter the US in Q-1 status, a sponsoring organization/employer must show that they maintain an established international cultural exchange program, and must show that the program activities take place in a public setting where cultural sharing can be achieved through direct interaction with the public. Finally, Q-1 visa holders may initially stay in the US for up to fifteen months, and may apply again to participate in the cultural exchange program, but must spend at least one year outside of the US before they may apply to participate with the program again.
B Visas and Visa Waiver Program
Many of the issues for the musicians attempting to enter to play at South by Southwest arose because they held B-1 or B-2 visas. Activities that are permissible for B visas are narrow in general, and those musicians who wish to enter the US to work and perform their craft should often explore other visa options. That being said, there are a couple of narrow exceptions for musicians to sometimes use these visas.
Additionally, the Visa Waiver Program allows citizens of certain countries who are traveling to the US for pleasure and business to enter the US without obtaining a visa. They must first register with the Electronic System for Travel Authorization (ESTA). Those entering the US through the Visa Waiver Program are subject to the same rules and restrictions as those with a B-1 or B-2 visa. It is especially recommended for musicians to consult a qualified immigration attorney if they are considering entering the US on a B-1/B-2 visa or under the Visa Waiver Program.
The B-1 Visa
The B-1 visa is a temporary business visitor visa for those who will be participating in business activities such as attending meetings or conventions, negotiating a contract, and participating in short-term training. The initial period of stay is limited to up to six months, and while one can apply for an extension of stay, the maximum total amount of time permitted in B-1 status on any one trip is generally one year.
So what activities are acceptable for musicians to engage in with the B-1 visa? Musicians may enter on the B-1 visa if they are participating in a cultural program sponsored by their home country, performing in front of a non-paying audience, and all expenses are paid by the home country’s government. They may also enter if participating in a competition or talent show for which there is no remuneration other than prize money and/or expenses. Finally, they may enter to use recording facilities in the US for recording purposes only, as long as the recording will be distributed and sold only outside of the US. No public performances can be given in this situation. When it is unclear whether a B visa is appropriate, it might be necessary to request an advisory opinion.
The B-2 Visa
The B-2 visa is the temporary tourist visa and is generally limited to visits for pleasure. One of the rare instances where a musician may enter the US on the B-2 visa includes visits by amateur musicians or amateur musical groups (i.e., those who normally perform without compensation) who will receive no remuneration in a musical event or contest. Generally, a musician may not work while in the US on a B-2 visa.
There are a number of options for musicians to enter the US, but the requirements, restrictions, and specific permissible activities of each visa category can be complicated. An immigration attorney can help determine which option is best so that the musician can make it to that important performance or festival so you don’t leave your fans disappointed.